IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-30541 Conference Calendar

NELSON SMITH,

Plaintiff-Appellant,

versus

MARK A. MARINO, Mr., I.D.B.; FIFTH CIRCUIT COURT OF APPEALS,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 98-CV-1188-J --------------------

October 20, 1999

Before JONES, WIENER, and STEWART, Circuit Judges.

PER CURIAM:*

Nelson Smith, Louisiana prisoner # P-1, C19, seeks leave to

proceed in forma pauperis (IFP), following the district court’s

certification that his appeal from the denial of his motion for

leave to file a civil-rights complaint was not taken in good

faith.

Smith argues that the district court abused its discretion

in dismissing his complaint, that counsel handled the appeal from

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 98-30541 -2-

his conviction in an inappropriate manner, as frivolous. Marino,

Smith’s court-appointed criminal attorney is not a state actor

for purposes of § 1983 liability. Polk County v. Dodson,

(1981); see also Mills v. Criminal Dist. Court

No. 3,

, 679 (5th Cir. 1988). The district court did

not abuse its discretion in dismissing Smith’s claims against

Marino as frivolous because he was not a state actor as required

for liability under § 1983.

Smith’s appeal is without arguable merit and is frivolous.

Howard v. King,

(5th Cir. 1983).

Accordingly, Smith’s IFP motion is DENIED and the appeal is

DISMISSED. 5TH CIR. R. 42.2. Smith’s motion to appoint counsel

and supplement the record is also DENIED.

The dismissal of this appeal as frivolous counts as a strike

for purposes of

(g) as does the district court’s

dismissal as frivolous of the original complaint. We caution

Smith that he has already accrued two strikes and that once he

accumulates three strikes, he may not proceed IFP in any civil

action or appeal filed while he is in prison unless he is under

imminent danger of serious physical injury. See

(g).

MOTIONS DENIED; APPEAL DISMISSED; WARNING ISSUED.